Inside NZ Police Megaupload files: US investigation began in 2010

Police knew raid on Dotcom compound would be perceived as overbearing.

US and New Zealand law enforcement action against filesharing kingpin Kim Dotcom and associates was set in motion over a year ahead of the raid on the Megaupload founder’s mansion in January, and police knew their tactical assault by helicopter would be perceived as overbearing, redacted police documents show.

Known as the “Blue Folder,” the planning documents obtained by Computerworld from the Auckland High Court reveal that that N.Z. Police enlisted the assistance of the SWAT-style Special Tactics Group (STG) and Armed Offenders Squad (AOS) for an armed, helicopter-borne assault on the Dotcom mansion at 0700 hours on January 20 this year, New Zealand time.

The documents shed more light on the United States' determined prosecution of Dotcom and fellow executives, which involves felony charges of racketeering, a complete shutdown of one of the 'Net’s most popular file-sharing sites and legal theories that could just as easily been wielded against YouTube. Dotcom remains free in New Zealand, pending an extradition hearing scheduled in the spring of 2013.

Further evidence of overeager and illegal police work emerged Thursday in New Zealand as Inspector General of Security and Intelligence Paul Neazor released a report on the illegal bugging of Kim Dotcom and Megaupload programmer Bram van der Kolk. Two GCSB officers were present at a police station nearby Dotcom’s mansion as the raid took place.

The request for assistance from the STG, dated January 9, also shows that police knew Dotcom and his then-heavily pregnant wife Mona were New Zealand residents before the raid. Under New Zealand law, the GCSB is not permitted to intercept the communications of the country’s citizens and residents.

But the police and the GCSB say they misunderstood the NZ Immigration Act and interpreted Dotcom’s residence class visa as not being enough to make him a protected permanent resident.

The director of the GCSB, Ian Fletcher has apologized to the New Zealand Prime Minister for the errors. It’s not clear what effect, if any, the admission of illegal interception will have on the extradition case against Dotcom and his four co-accused, or if the GCSB shared information with the FBI. The GCSB is in charge of New Zealand’s contribution to the global Echelon SIGINT network under which the US, the UK, Australia and Canada share information with each other.

Police weighed several options for the raid named “Operation Debut,” undertaken at the behest of US authorities, and sought to take Dotcom and associates with the “greatest element of surprise” and to minimise any delays the in executing the search and seizure operation should the German file sharing tycoon’s staff be uncooperative or even resist officers on arrival.

According to the documents, the preferred option for the police was to drop a “primary arrest team proximate to the dwelling” with STG and AOS officers in “lower standard of dress” following in vehicles on ground.

However, police were concerned that their actions could be seen as “heavy handed” and the use of helicopter as “possibly seen as over the top use of resources."

Furthermore, police also questioned the scale of the operation, as Dotcom and associates faced only fraud offences and asked “why a tactical intervention?” in the planning documents.

Due to “the international interest this warrant execution may bring” police officers were to dress and interact “in as lower [sic] key manner as possible” the planning documents dictated.

Police classified the entire operation as “Low Risk” even though the documents said there would be firearms on the premises.

The police planners also noted that “Dotcom will use violence against person’s [sic] and that he has several staff members who are willing to use violence at Dotcom’s bidding” after a U.S. cameraman, Jess Bushyhead, reported the Megaupload founder for assaulting him with his stomach after a dispute.

Based on Dotcom’s license plates such as MAFIA, POLICE, STONED, GUILTY, and HACKER, police said this indicates the German “likes to think of himself as a gangster” and is “described as arrogant, flamboyant and having disregard for law enforcement.” However, the documents show that Dotcom had only been caught violating the speed limit in New Zealand.

The request for assistance from the STG notes that the US investigation against Mega Media Group and Dotcom was started in March 2010 by prosecutors and the FBI.

According to the documents, US prosecutors and FBI “discovered that the Mega Media Group had engaged in and facilitated criminal copyright infringement and money laundering on a massive scale around the world.”

FBI in turn contacted NZ Police in “early 2011," requesting assistance with the Mega Media Group investigation as Dotcom had moved to New Zealand at the time.

NZ Police agreed and set up Taskforce Debut “to action requests made by the FBI through the Mutual Legal Assistance Treaty (MLAT) which includes the execution of search warrants, seizure of assets, arrests of targets under warrant and the extradition of targets.”

Even though the search and arrest warrants were later found to be invalid and unlawful, NZ Police categorically state in the documents that they have been “thoroughly evaluated” and their legal authority is current.

Juha perkele! I find delicious irony in the use of "[sic]" in various quotes while having the most appalling errors in one's text at the same time.

Secondly, I think this case is so far gone into the fruits of a poisoned tree territory that I wonder how Dotcom can be extradited, let alone convicted, in any court of law without further ginormous misapplication of the law?

Hmm... an aerial supported tactical unit seems a bit overkill for a fat guy that would probably start huffing and puffing at even the thought of the weight of raising a firearm. He's be more likely to dive under the bed for a bag of opened, stale Funyuns than he would for a sawed-off. (Do they have Funyuns in NZ? Delightful stoner treat.)

Secondly, I think this case is so far gone into the fruits of a poisoned tree territory that I wonder how Dotcom can be extradited, let alone convicted, in any court of law without further ginormous misapplication of the law?

It's pretty simple, actually - "fruits of the poisoned tree" doesn't apply because none of the evidence against him was collected as a direct result of him being arrested.

I mean, this affair might have been hamfisted, but it's no reason to stop using our brains.

(And I know it's a Wired repost, but the author should know better than "legal theories that could just as easily been wielded against YouTube", unless he, of course, has evidence of YouTube ignoring emails about copyrighted material being on their servers, such that it was still on them a year later when the website was taken down, and of employees pinging emails at each-other requesting copyrighted files.)

Law enforcement in this instance reminds me of the trollish, internet forum, grammar-Nazi that likes to go and make an example of someone by correcting their spelling & punctuation errors in an effort to self-elevate to the prized position as the "I-Know-Better-Than-You" Guy... all the while making egregious errors of their own. Just end up with egg all over their face.

I think that's what happened here. They were going to make an example of Kim (I completely and totally refuse to call this self-flagellating fuck-tard by his "Dot Com" moniker) and piss poor procedure (perhaps overzealous heavy-handedness?) lead to it snowballing out from under them. Kim'll probably go free even though it seems pretty apparent his operation isn't entirely on the up & up, and he'll even be awarded damages and have restraining orders slapped on every major law enforcement organization.

In related news, 6 months after he goes free he'll die of some mysterious food allergy... albeit it looks likes he's never been allergic to an ingestible in his life.

Secondly, I think this case is so far gone into the fruits of a poisoned tree territory that I wonder how Dotcom can be extradited, let alone convicted, in any court of law without further ginormous misapplication of the law?

It's pretty simple, actually - "fruits of the poisoned tree" doesn't apply because none of the evidence against him was collected as a direct result of him being arrested.

IANAL but:

The search of mansion was deemed illegal and anything resulting from the search would be fruit of the poisonous tree.

Secondly, I think this case is so far gone into the fruits of a poisoned tree territory that I wonder how Dotcom can be extradited, let alone convicted, in any court of law without further ginormous misapplication of the law?

It's pretty simple, actually - "fruits of the poisoned tree" doesn't apply because none of the evidence against him was collected as a direct result of him being arrested.

IANAL but:

The search of mansion was deemed illegal and anything resulting from the search would be fruit of the poisonous tree.

Actually within NZ law illegally obtained evidence can be used it if it found to add significant detail to a case (IANAL) - the evidence is not automatically dismissed but weighted against various factors contained within the relevant legislation. RadioNZ has reported a couple of times on the issues surrounding the use of illegally gathered evidence in this case and there have been other (locally) high-profile cases where illegally gathered evidence has been presented during a trial (illegally gathered video footage form the Urewera Anti-Terror raids was shown to a jury during the court trial).

Also it should be noted that this case may revolve around copyright but that in of itself cannot lead to extradition under our law. The charge of money laundering (which if I'm not mistaken is on the list of charges) is covered under our extradition treaty with the US

Secondly, I think this case is so far gone into the fruits of a poisoned tree territory that I wonder how Dotcom can be extradited, let alone convicted, in any court of law without further ginormous misapplication of the law?

It's pretty simple, actually - "fruits of the poisoned tree" doesn't apply because none of the evidence against him was collected as a direct result of him being arrested.

IANAL but:

The search of mansion was deemed illegal and anything resulting from the search would be fruit of the poisonous tree.

Actually within NZ law illegally obtained evidence can be used it if it found to add significant detail to a case (IANAL) - the evidence is not automatically dismissed but weighted against various factors contained within the relevant legislation. RadioNZ has reported a couple of times on the issues surrounding the use of illegally gathered evidence in this case and there have been other (locally) high-profile cases where illegally gathered evidence has been presented during a trial (illegally gathered video footage form the Urewera Anti-Terror raids was shown to a jury during the court trial).

Also it should be noted that this case may revolve around copyright but that in of itself cannot lead to extradition under our law. The charge of money laundering (which if I'm not mistaken is on the list of charges) is covered under our extradition treaty with the US

Again, just to be sure, IANAL.

People tend to focus on the copyright stuff because they are peeved they aren't getting the "free" stuff anymore. They tend to overlook the more serious types of charges like money laundering and racketeering because their reality is based on their own (mis)perceptions.The communities mafiosos live in tend to support the "Don" for what he gives them... doesn't mean his hands are clean though.

As the evidence was given to the USA then does it really matter?... He is not going to court in NZ for his "Crimes". The USA did not seize it Illegally on US Soil, so I doubt it could be thrown out (IANAL). Best case is that Nz refuses to ship him and he has to stay there until the US either withdraws the warrant or drops the case fully. The big question (I wonder) is if he never goes to the states then will the SOL for Infringement pass over in a few years?

People tend to focus on the copyright stuff because they are peeved they aren't getting the "free" stuff anymore. They tend to overlook the more serious types of charges like money laundering and racketeering because their reality is based on their own (mis)perceptions.

Nothing in what you say justifies breaking the law. And the 'more serious' charges are merely an addendum to the central one of copyright infringement - we all know what really motivated this illegal activity on the part of the authorities.

Secondly, I think this case is so far gone into the fruits of a poisoned tree territory that I wonder how Dotcom can be extradited, let alone convicted, in any court of law without further ginormous misapplication of the law?

It's pretty simple, actually - "fruits of the poisoned tree" doesn't apply because none of the evidence against him was collected as a direct result of him being arrested.

IANAL but:

The search of mansion was deemed illegal and anything resulting from the search would be fruit of the poisonous tree.

He would be getting tried in the U.S. so the search would need to be deemed illegal by the U.S. for it to be thrown out. (We need a good international law person to speak to that) The U.S. feels like it already had a case and that was why they felt confident enough to request the arrest and extradition of dotcom. So as long as he gets extradited the U.S. doesn't give a shit about whatever laws NZ breaks to get him. People seem to be forgetting in these articles that there are 2 court systems involved in this mess.

Dotcom remains free in New Zealand, pending an extradition hearing scheduled in the spring of 2013.

Is this Spring in the US or NZ?

I know, it's annoying when internet sites use seasons isn't it? It would have made far more sense to use "quarter X"... but then again I've been saying that for years... and authors still use seasons. Everytime I read an article saying "summer" I think Nov-Feb...

Secondly, I think this case is so far gone into the fruits of a poisoned tree territory that I wonder how Dotcom can be extradited, let alone convicted, in any court of law without further ginormous misapplication of the law?

It's pretty simple, actually - "fruits of the poisoned tree" doesn't apply because none of the evidence against him was collected as a direct result of him being arrested.

IANAL but:

The search of mansion was deemed illegal and anything resulting from the search would be fruit of the poisonous tree.

AFAIK none (or at most very little) of the evidence related to the "Mega Conspiracy" case was collected from his mansion or as a result of searching his mansion. Therefore, "fruit of the poisoned tree" doesn't come into play.

[Edit]: I mean, sure, they confiscated his personal computers, but I'm pretty sure that'd be icing on the cake, unless he never interacted with either the website or the people who run it.

Although that said, there is a possibility that he purposely kept a low profile w.r.t the website and its tech crew so he could absolve himself if it hit the fan, in which case, if he had important documents on his personal computers, we would have a problem - but it seems to me that if you'd go to all the trouble doing the former, you'd probably do the same with the latter, which would mean the computers wouldn't have helped anyway.

What's the point of making unauthorised evidence gathering illegal if you're going to allow it in court anyway? You might as well just say, "Do whatever you want; to hell with privacy laws

I think the NZ law is more thoughtful then most other "illegal" evidence laws. Someone has to sit down and think "does the evidence outweigh the illegality of obtaining it".

I mean if the cops grabbed a video of someone being murdered without a warrant, it some countries they couldn't use that at trial... in NZ they could, because manifestly it's worth so much more then the small break in the law.

I'm not saying that all bad searches should be respected, and neither is the NZ law (IANAL), just in some special cases it can be.

What's the point of making unauthorised evidence gathering illegal if you're going to allow it in court anyway? You might as well just say, "Do whatever you want; to hell with privacy laws

I think the NZ law is more thoughtful then most other "illegal" evidence laws. Someone has to sit down and think "does the evidence outweigh the illegality of obtaining it".

I mean if the cops grabbed a video of someone being murdered without a warrant, it some countries they couldn't use that at trial... in NZ they could, because manifestly it's worth so much more then the small break in the law.

I'm not saying that all bad searches should be respected, and neither is the NZ law (IANAL), just in some special cases it can be.

My problem is that as soon as you create unspecified exceptions to privacy laws you obviate the whole law. It means that the type of charge determines whether you respect privacy laws. It allows "fishing expeditions" where you look for evidence of serious charges without having prior cause enough to convince a judge to issue a search warrant, meaning you can willfully bypass due process.

It leads to abuse, as we've seen here, with no sanctions to the perpetrators, the LEOs. (Also, when exceptions are unspecified, it allows bias on the part of the "decider", of any degree, to be justified.)

The whole affair is a farce. NZ police, at the behest of their government at the behest of the US government at the behest of Hollywood, break their own laws and send helicopters and swat teams to arrest someone accused of copyright infringement.

So, to be clear, is it that the raid which was deemed illegal under NZ law would also have to be declared illegal under US law before the case gets tossed? Given that the warrants were deemed invalid due to being too broad, I would imagine they would get tossed under US law, as well.

I'm no lawyer either, but it seems this whole thing should have been rock-solid, at least as far as arresting Dotcom and shipping him off to be tried. But the NZ feds and the US feds managed to bungle even that. As far as the rest, sounds sketchy - civil liabilities for the company, maybe, since they seemed to be playing a little fast and loose complying with takedown notices and such.

No matter what you think of Dotcom, consider it this way: they raided this dude's house, kicked him around a bit, jailed him, and destroyed his business at the direction of law enforcement on the other side of the planet, at the behest of a trade group. If you don't think that shit's scary, you're fucked in the head.

Imagine you (in the US) somehow pissed off a powerful Chinese company. They put pressure on China's federal law agency, who asks a favor of the FBI. Next thing you know, you're riding in the party van back to jail. You don't think there'd be riots in the streets over something like that here? US does the reverse more and more, and the typical reaction seems to be "he was breaking US law, go get 'em, boys!" That's bullshit

All I know is if that were me in Kim's shoes it would have been the Utah shooting all over again. I don't care what I've done, if you air assault my property I'm gonna get my guns and start killing. I can only imagine what that fool was thinking when he saw armed men storming his house... Why would they even do something like that unless they wanted to start a gun fight? I can't think of a better way to invoke a fight-or-flight response out of a criminal.

Another thing, why the fuck don't we hear about police assaulting drug dealers like this? Someone should be hung for this. What a waste of resources and confidence.

People tend to focus on the copyright stuff because they are peeved they aren't getting the "free" stuff anymore. They tend to overlook the more serious types of charges like money laundering and racketeering because their reality is based on their own (mis)perceptions.

NZ Judge David Harvey ...confirmed that the charges in the indictment relating to money laundering, racketeering and wire fraud are not separate criminal acts but dependent on the claim of criminal secondary copyright infringement.

Even though I actually think he's guilty of encouraging and profitting from copyright infringement I want this case to fail so hard considering what an atrocity it's made of the manner in which justice should be sought.

On that note what's the point of calling a, so far, innocent man a 'kingpin'. Seems like the wrong connotations to me.